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Rawlins v. State1/29/1998
9.
REASONABLE SUSPICION
Rawlins argues that Gohlke did not have reasonable suspicion to make the investigative stop because his "conduct was as consistent with innocent activity as with criminal activity." See Johnson v. State, 658 S.W.2d 623, 626 (Tex. Crim. App. 1978) (holding that a detention based on events that appear equally innocent and criminal is illegal). Further, Rawlins suggests that Gohlke merely had a hunch that something criminal was afoot. See Williams v. State, 621 S.W.2d 609, 612 (Tex. Crim. App. [Panel Op.] 1981).
It is well settled that a police officer may detain an individual to determine whether a crime has been committed. See Terry v. Ohio, 392 U.S. 1, 20-22 (1968). To justify the detention, the police officer must have specific articulable facts for suspecting criminal activity. Id. at 22-23. The reasonable suspicion determination is based upon a totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 9 (1989). Reasonable suspicion must be based on more than a mere hunch. Comer v. State, 754 S.W.2d 656, 657 (Tex. Crim. App. 1986). However, reasonable suspicion requires less information than is constitutionally required for probable cause to arrest. Terry, 392 U.S. at 22-23. In determining whether there was reasonable suspicion, we do not consider individual factors alone in a vacuum. Woods v. State, No. 96-1574, slip op. at 11, 1997 WL 685978, at *5 (Tex. Crim. App. Nov. 5, 1997). Rather, a Terry stop will be valid if the detaining police officer articulates specific facts, which taken together with the inferences from the totality of the circumstances, would lead him to conclude that the person detained is, has been, or soon will be engaged in criminal activity. See Woods, slip op. at 12.
Although Rawlins relies on case law that his conduct was as consistent with innocent activity as illegal activity, the Texas Court of Criminal Appeals recently re-examined the standard for reasonable suspicion and abolished the "as consistent with innocent activity as with criminal activity" test to conform with recent United States Supreme Court opinions. Woods, slip op. at 12; see United States v. Cortez, 449 U.S. 411 (1981) (holding that objective facts can be combined with permissible deductions to form the basis for reasonable suspicion); United States v. Sokolow, 490 U.S. 1 (1989) (holding that the conduct itself need not be unlawful, but must be evaluated in light of the totality of the circumstances). Thus, the "as consistent with innocent activity as criminal activity" standard is no longer a viable test for determining reasonable suspicion for temporary detention. Woods, slip op. at 12. The court of criminal appeals concluded that there may situations when a person's conduct viewed alone may appear innocent, yet when viewed in light of the totality of the circumstances, the conduct may give rise to reasonable suspicion. Wood, slip op. at 11.
In this case, Gohlke testified that she observed Rawlins driving behind a closed Sonic restaurant at one o'clock in the morning. All the store's lights were turned off and there were no other vehicles or persons in the parking lot. In addition, Gohlke stated that burglaries had been reported in the area and numerous alarms were sounding.
The facts of this case are similar to those in Bailey v. State, 629 S.W.2d 189 (Tex. App.--Dallas 1982, pet. ref'd). In Bailey, the police officer stated that shortly after midnight, he noticed Bailey in the parking lot of two 7-Eleven stores, one of which was open and the other was under construction. Bailey parked his car in front of the 7-Eleven under construction. The officer approached Bailey and observed a box in his vehicle. The box
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